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STATE OF LOUISIANA 



SPEECH 



HON. F. T. FRELmGHUYSEN, 



NEW JERSEY, 




Senate of the United States, 



APRIL 14, 1874. 



WASH1!NGT0N: 

<T O V K R N .\r E N T P K I N T I N G O F F I C K 

1874. 



r376 



,^ 



u-^ 



SPEECH 



HON. F. T. FRELINGHUYSEN. 



The Senate, as in Committee of the Whole, having under consideration the bill 
(S. No. 446) to restore the rights of the State of Louisiana — 

Mr. FRELIXGHUYSEN said : 

Mr. President : Having rather incidentally than by deliberate pur- 
pose taken some subordinate part in the discussion of this question 
when it was before the Senate on a former occasion, I propose now 
to submit concisely my views on two propositions : First, that the 
President of the United States was authorized by the Constitution, 
standing alone, and that he was also authorized by the statutes of the 
country, to send armed in-otection to Louisiana ; and second, that Con- 
gress is not authorized to order a new electicii in that State. 

And I may here say that while I cannot agree with the conclusions 
of the Senator from Wisconsin, [Mr. Carpexter,] I trust I do not 
violate delicacy in stating that I admire the marked ability with 
which he has presented his views. He has so presented the case that 
he may properly demand and not petition for it a serious and careful 
consideration. It is to the labors of that Senator and of the Senator 
from Indiana [ilr. Morton] that we and the country are indebted 
for an understanding of this somewhat complicated subject. 

I submit that the President was authorized by the Constitution, 
standing alone and not enforced by any statute, to send the protec- 
tion he did to Louisiana. Mr. Kellogg was the governor de facto of 
that State. The President told us that he had so recognized him, and 
that he would continue so to do unless Congress directed to the con- 
trary, and we purposely did nothing. Kellogg was therefore governor 
de facto, recognized by the President and by the silent acquiescence of 
Congress ; and on the 13th of May, 1873, he sent the President this 
communication : 

Sir : Domestic violence existing in several parishes of this State which the State 
authorities are unable to suppress without great expense and danger of bloodshed, 
and the Legislature not being in session, and it being impossible to convene the 
Legislature in time to meet the emergency, I respectfully make application, under 



2 

the foni'th section of article 4 of the Constitntion of the Fnited States, for a siiffi 
cient military force of the United States Goveinment to enable the State authori- 
ties to suppress insurrection and domestic violence. 
Very respectfully, youi' obedient servant, 

"WILLIAM P. KELLOGG, 

Governcrr of Louisiana. 
To his Ex(;ellje.ncy V. S. Grant, 

rresident of the United Staffs. 

If the. President was satisfied that domestic violence existed, on 
being called npon by the governor for a force to suppress it he was 
bound under the proAisions of the Constitution to do so whether there 
was or was not any statute imposing that duty upon him. That dis- 
order existed in that State cannot be questioned, because the pream- 
ble of the bill introduced for a new election truly declares in these 
words : 

Whereas the i^nblic peace in said State is at present preserved and can only be 
preserved during the existing state of things in said State at the expense of the 
United States and bj- retaining a part of the army in said State. 

That the demand upon the President was made according to the 
constitutional requirements (whether in compliance with the statutes 
or not) cannot \w questioned, after reading the foregoing application. 

Sir, tlie Constitution carefully distributes the powers of govern- 
ment into three branches, the legislative, judicial, and executive. 
Article 1, section 8, declares the powers of Congress in eighteen differ- 
entclauses. Article 3, section 1, declares that the judicial power shall be 
vested in one Suiireme Court and in such inferior courts as Congress 
may ordain and establish ; and article 2, section 1, declares that the 
executive power shall be vested in the President of the United States. 
This distribution of power is essential to republican liberty. The 
aggrandizement of all power in one body, whether it consists of many 
individuals or of a unit, is despotism. The question is, to which of 
these three divisions of government the duty under the Constitution 
attac}\es to protect a State from dom(^stic violence ? The Constitu- 
tion says that it is "the United States" that is to give this protection. 
We are here told that saying the " United States" shall give the pro- 
tection is equivalent to saying that Congress shall give it. To that 
I cannot agree. If the Constitittion had intended that Congress, as 
contradistinguished from the executive or judiciary, should give 
this protection, it would have enumerated this power among those 
conferred npon Congress in the eighth section of the first article. In 
that enumeration of the powers of Congress it is provided that Con- 
gress may suppress insurrection and repel invasion ; but a general 
insurrection is a very ditlcrent thing from domestic violence in a State. 
That term includes insurrection, but it comprehends much more that 
does not amount to insurrection. Neither can it be claimed that this 
power is given to Congress by the last clause of the eighth section of 
the fiist artich', wliicli says Congress shall have power " to make all 



laws ueoessary aud proper to carry into execution the foregoing pow- 
ers," because this protection against domestic violence is not a forty- 
going power, not being mentioned until we come to the fourth section 
of the sixth article, while this provision as to making all laws, &c., 
is found in the eighth section of the first article ; and besides, where 
the question is whether the President's power is restricted to the exe- 
cution of a statute, rather than to the execution of the Constitution, 
it does not settle anything to say that Congress may make laws when 
necessary and proper. That is the very question. When not neces- 
sary they need not, and when not proper they may not, pass the law. 
I say that Cougi-ess need not pass a law to give authority to the Pres- 
ident to afford this protection ; not that they may not. 

The term " United States" includes all three of the divisions of the 
Oovernment, and that division of the Government is to act to which 
the duty appropriately belongs. If a State should pass a law tending 
to create an aristocracy, as that a State judgeship should be hereditary, 
then it would be the province of the judiciary to fulfill the guarantee 
and to declare such law void. In that case the judicial power is " the 
United States." If all law and all form of government in a State has 
been destroyed by a rebellion, so that it is necessary to have a new 
organization of government, then it is the legislative power that must 
fulfill this guarantee by setting up new governments, and then Congress 
is the United States. Aud here is where Andrew Johnson violated 
his duty and departed from his proper and legitimate powers, by under- 
taking as the Executive to exercise legislative functions. If there 
exist domestic violence, disorder, and obstruction to the laws, then 
it is the province of the Executive on being called upon to fulfill the 
guarantee of the Constitution and the Executive is " the United States." 

Mr. President, this provision of the Constitution contemplates a 
sudden emergency, when violence has subjected and trampled down 
the law, and when, without waiting for the Legislature, the governor 
is to call upon the President for protection. Every other year Con- 
gress is for nine months not in session, and when in session the intro- 
fluction of a biU, its reference to a committee, its report upon it, its 
being three times read and thus passing each House, [aud then to be 
subjected to the approval of the President, is a process inconsistent 
with the demands of the emergency as contemplated by the Consti- 
tution. I know Congress may delegate some of its j)owers ; but when 
the duty is such that Congress cannot perform aud that the Execu- 
tive must, and the power is omitted in enumeration of the powers of 
Congress, and the power is carefully stated to belong not to Congress 
but to the United States, then we are to infer that the Constitution 
intended to confer the power on the Executive, and not that the 
duty was to be performed either by the President, or by any one else, 
by virtue of a delegation of i)ower from Congress. 



Again, tlie President of the United States is by the Constitution 
invested witli all the power necessary to perform this duty. He is, 
by article 2, section 2, made the Commander-in-Chief of the Army and 
Navy ; and then the Constitution, having given him this power, ex- 
pressly declares "that the President shall take care that the laws be 
faithfully executed," and requires him to swear " that he will faith- 
fully execute the office of President." There ha^s never been any act 
passed requii-ing him to perform this constitutional duty. The Con- 
stitution need not be enacted into law to be enforced. It is itself the 
highest law. There might or there might not be an act of Con- 
gress authorizing the President to repel invasion ; that is merely ac- 
cidental. His duty is the same. If a fleet should come up the Poto- 
mac, is the President to stand like a cowardly dotard, with the Army 
and Navy at his control, until the White House is in ashes and the 
Capitol in ruins, waiting for a declaration of war by Congress, or 
authority to act from them ? The Constitution has made him the 
custodian of the nation, the protector of its laws ; it has given him 
the means to execute his high office, and he must perform it. 

We claimed that theEioGrandewasthe western boundary of Texas. 
Mexico disputed it ; and President Polk sent General Taylor there in 
1845 to protect our interests, and war existed for months before it 
wa.s declared by Congress. 

We obtained possession of Louisiana in 1803 ; of Florida in 1819 ; 
and there were frequent occasions when the President sent our fleet 
to guard the disputed territory between the Mississippi Kiver and the 
Perdido. 

It is true that it is the laws of the United States, and not of the 
States, that the President, under the Constitution, is to see are faith- 
fully executed ; but under our system of goA'crument the laws of the 
United States and the laws of the States are in their execution so in- 
separably interwoven and interlaced that it is impossible that the 
former can be executed and enforced in a State where anarchy exists ; 
and consequently, under the provision that the President is to see the 
laws of the United States faithfully executed, he must see to it that 
anarchy does not exist in the State. 

I do not see that we have on this question anything to do with the 
propriety of Durell's decisions. The President is intrusted with the 
Army, not to enforce any man's views or ojiinions ; he is intrusted 
with the duty of enforcing the laws ; he enforces the writ which 
speaks in the name of the United States, and is tested by the Chief 
Justice and must be obeyed. To hold the President responsible for 
unjust decisions because he insists that the process of the United 
States shall be resiiected, would be to hold that he must sit in judg- 
ment to approve or disapprove the findings of the Federal courts, and 
would be a commingling of the executive with the judicial functions 



a 

■of greater absurdity, perhaps, than the merging of the powers of 
Congress with those of the Chief Magistrate as insisted on in this 
-case. 

I then submit, Mr. President, that protection from " domestic vio- 
lence " under the fourth section of the fourth article appeals to the 
arm, the force, of the nation in an emergency, and is an appeal to 
the President, because the executive power is vested in him and it is 
executive power that is required ; and because he is Commander- 
in-Chief of the Army and Navy, he is bound to see the laws faithfully 
executed; and because it is the United States and not " Congress" 
that guarantees against "domestic violence." Congress cannot take 
that power from the President. It is his. Congress may regulate it, 
may say he shall or shall not use the militia, he shall or shall not use 
the Army or the Navy ; it may take from him all means of perform- 
ing his constitutional duty, but when he has the means he must per- 
form it. 

I do not dispute that Congress may also execute this guarantee. 
There is, under the Constitution, a mixture as well as a division of 
j>owers. The President acts legislatively when he approves or vetoes 
a. bill ; the Senate acts judicially in impeachments ; the House of 
Eepresentatives acts as an inquest in its presentation of an impeach- 
ment ; and the Senate shares the executive power in the matter of 
appointments and treaties ; but the President in his sphere is as inde- 
pendent of Congress as Congress is of him. He may nominate, and 
with the advice of the Senate appoint, to office ; he may convene Con- 
gress, aud under certain cii'cumstances may adjourn it ; he may receive 
public ministers; he may make treaties, subject to ratification by the 
Senate ; he mus t see to it that the laws are executed, aud he must fulfill 
the guarantees of the Constitution when that duty appropriately be- 
longs to him. 

These powers cannot be taken from him. 

Congress has sometimes attempted to encroach upon these powers. 
It tried to limit the pardoiuug power, but the Supreme Coiu-t sus- 
tained the President. In the case known as Ex parte Garland, found 
in 4 Wallace, 380, the court says : 

Congress can neither limit the etfect of his pardon, nor exchide from its exercise 
any class of offenders. The benij^n prerogative of mercy cannot be fettered by any 
legislative restriction. 

And again in 13 Wallace, 128, in a case arising itnder what is 
known as Drake's amendment, the court hold a similar doctrine. 
The House of Eepresentatives, in 1796, attempted to limit the Presi- 
dent's power to make treaties, and by a resolution declared that where 
a treaty depended for the execution of any of its stipulations on an 
act of Congress, it was the right of the House to deliberate on the ex- 
pediency or inexpediency of carrying such treatj' into effect. The 
case in question was a treaty with Great Britain. 



6 

Washington, in a message of March 30, 179G, denies such power ; 
and Kent (volume 1, page 286) says: " The House of Represeutatives 
is not above the law, and has no dispensing power. The argument 
in favor of the conclusive efficacy of every treaty made by the Presi- 
dent and Senate is so clear and palpable as to carry conviction 
throughout the community." We must be careful, if we intend to 
preserve this government, how the legislative branch, which Ls by far 
the most powerful, euci'oaches on the executive or)[on the judiciary. 

Governor Kellogg was right in making his application for aid to 
rest on the Constitution rather than upon any statute. 

But I submit that it is perfectly clear that the President was by 
statute also authorized to afford this protection. The statute of 1795 
authorizes the President to use the militia in case of an insiurection 
n any State agaiust the government thereof on the application of 
the governor or Legislature. 

The act of 1807 substitutes the Army for the militia, and goes fur- 
ther than the act of 1795, and authorizes the President to use the 
Army not only in cases of "insurrection," but in cases of "obstruc- 
tion of the laws either of the United States or of any individual 
State." This certainly was a case of obstruction of the laws of an 
individual State. I have that confidence in the legal judgment of 
the Senator from Wisconsin, that I am induced to believe that he will 
agree with me that the statute of 1807 applies directly to this case. 
My friend interrupts me, and truly says that the statute of 1807* con- 
tains a provision that the President is to use the Army where the 
militia could be used. 

Mr. CARPENTER. Under the then existing law. 

Mr. FRELINGHUYSEN. On the construction of the statute of 
1807 we join issue ; and as that issue is determined the President, so 
far as he acted under the statutes, was right or was wrong. ^My friend 
would strike out of the statute of 1807 the -words " in case of obstruc- 
tion of the laws of the United States or of any individual State." 
He would limit and nullify those words, because the act further says 
that he was to use the Army where it was lawful for him to call forth 
the militia to suppress an insurrection. 

In construing a law we must, if we can, give efi^ect to every part of 
it. I submit that those words, " where it'is lawful for the President 
of the United States to call forth the militia," do not in any way 
limit or restrict the power given to the President to prevent the ob- 
struction of the laws of a State, but have an entirely different office. 
They mean this : The statute of 1795 had declared that the President 
might use the militia where he was called upon by the Legislature or 
the governor of a State to suppress an insurrection. The statute 
of 1807 provides that he may use the Army to suppress an insurrec- 
tion or to prevent the obstruction to the laws of the^jUnited States or 



of any State where he coald have used the militia, which is where he 
is called upon to prevent such obstruction to the laws by the Legisla- 
ture or by the governor of a State. There is in the act of 1807 no 
provision excepting this reference back to the act of 1795 requiring 
the using of the Aimy to prevent an obstruction to the laws to depend 
on the President being called upon by the governor or Legislature for 
the aid of the Army. Let me read the two acts, and I do not see that 
there can be any difference between us as to their construction. The 
iirst act is in these words : 

In case of an insurrection in any State against the government thereof it shall 
be lawful for the President of the United States (on application of the Legislature 
of such State, or of the executive, when the Legislature cannot be convened) to 
call forth such number of the militia of any other State or States as may be applied 
for as he may judge 8ufla.cient to suppress such insurrection. 

The act of 1807 is as follows : 

In all cases of insurrection or obstruction to the laws, either of the United 
States or of any individual State or Ten-itory, where it is lawful for the President 
of the United States to call forth the militia for the purpose of suppressing such 
insurrection or of causing the laws to be duly executed, it shall be lawful for him to 
employ, for the same purposes, such part of the land or naval force of the United 
States as shall be judged necessary, having first observed all the prerequisites of 
the law in that respect. 

Mr. CARPENTER. Will my friend allow me to put a question at 
that point ? 

Mr. FRELINGHUYSEN. Certainly. 

Mr. CARPENTER. We entirely agree that under the act of 1807 
the President cannot use the Army or Navy except in cases where by 
the former law he could use the militia. I understand that to be the 
Senator's view. 

Mr. FRELINGHUYSEN. Not at all. 

Mr. CARPENTER. I am speaking simply of the statute, uot of the 
Constitution, now. 

Mr. FRELINGHUYSEN. Not by the statute. I hold that uuder 
the act of 1807 the President may use the Army and Navy in a case of 
insurrection, and 

Mr. CARPENTER. AVhere he could not have used the militia 
before ? 

Mr. FRELINGHUYSEN. No. 

Mr. CARPENTER. Then I understand the Senator, as I did before, 
to concede that under the act of 1807 the President is only authorized 
to use the Army and Navy in that class of cases where by the statute 
of 1795 he might have used the militia. 

Mr. FRELINGHUYSEN. No; we differ again. My position is that 
he can only use the Army and Navy where under the act of 1795 he could 
use the militia to suppress an insurrection, but under the act of 1807 he 
may use the Army and Navy in other cases than to suppress insurrec- 



8 

tiou ; he may use them where there is au obstruction to the laws of an 
iuclividual State. 

Mr. CARPENTER. I now uuderstaud the Senator's position. That 
was all I wanted to do. 

Mr. FRELINGHUYSEN. I think it would be contrary to all rules 
of construction to hold that you are to strike out those words "in case 
of obstruction to the laws of the United States or any individual 
State," and give them no significance. 

Mr. CARPENTER. Does not my friend do the same thing with the 
words " in cases where by law he is authorized to use the militia ?" 
I take that to be a description of the case in which the President is 
authorized to tiso the Ai'my and Navy. It must be a case where prior 
to the act of 1807 he could have used the militia. Then under the act 
of 1807 he may have used the Army and Navy instead of the militia. 
Then go back to the former law to see where he may use the militia 
in a State ; and it must be a case of insurrection in a State against 
the government thereof. 

Mr. FRELINGHUYSEN. No, Mr. President; the significance of 
those words " where he could use the militia " is this : where he is 
called upon by the governor or the Legislature, as is provided in the 
act of 1795 in reference to the militia. It will be observed that there 
is in the act of 1807 no other provision requiring the use of the Army 
and Navy to depend upon the call to be made by the governor or Legis- 
lature. We thus give eifect and force to every word of the act of 
1807. By giving the construction to the statute of 1807 which my 
friend insists on, we strike out the words "in cases of obstruction to 
the laws of the United States or of any individual State," and also 
leave the act without any provision whatever making a call by the 
governor or the Legislatiu'e a necessary precedent to the use of the 
Army and Navy. The President was authorized by the Constitution 
standing alone, and was authorized by the statutes, to give the pro- 
tection he did to Louisiana. 

Now let me consider the second proposition, namely, that the United 
States is not authorized to order a new election in Louisiana. The 
Constitution iirovides that the United States shall guarantee to each 
State government peace, tranquillity, freedom from anarchy, and 
disorder ; second, its guarantee is that each State shall have a gov- 
ernment in form republican ; that it shall not be in its frame-work an 
aristocracy, where authority is vested in a privileged order ; that it 
shall not be a democracy, where the people in i)erson exercise the 
sovereign power; the government shall not be a despotism, where the 
absolute power is exercised by a man or men without constitutional 
restraint; but that the government shall be in form republican, where 
the supreme power is intrusted to representatives elected by the peo 
pie. 



9 

The Coustitutiou says — and whether right or wrong we are con- 
trolled, by it, and it is beyond all argument — that we are only to 
guarantee a republican form of government with order and tran- 
(luillity ; and when we insist that full and accurate significance shall 
be given to the word " form" as it occurs in this provision of the Con- 
stitution we are not sticking in the bark, we are not superficial, but 
we are going to the very root of the matter. We are claiming that 
the Federal Government only has to do with the form, leaving the 
substance, the administration of the form of government, to the peo- 
ple of the States. Those who would ignore this word " form" from 
the restricted grant of power given by the States under the consti- 
tutional compact to the Federal Government would usurp the very 
substance to the Federal Government, and leave only the "form" or 
shell of republican government to the States. 

The Senator from Wisconsin submitted this well-considered sen- 
tence to the Senate : 

If I am right in saying that it is the vital element of republican government that 
its rulers are chosen by the people, it follows that the present government of Lou- 
isiana, lacking this, is not a republican government. 

I do not object to his definition. Republican government is one 
the vital element of which is that rulers are elected by the people. 
Ten years ago a majority of the people of Louisiana had no voice in 
electing the rulers. Was it a republican government ? I do not say that 
it was. It certainly was not, under the definition stated. But as Con- 
gress had no right except over the form of government, it was never 
claimed that under the guarantee clause of the Constitution Congress 
could give the right to vote to the disfranchised majority of the peo- 
ple of that State. It required an amendment to^ the Constitution 
before that could be effected. 

This word "form" is not a matter of chance as it occurs in this 
Constitution. The people of the Southern States, when they entered 
into this compact, knowing that large portions of their poiiulations 
were disfranchised, and not intending that they should have a voice 
in the election of rulers, would never have agreed to insert in the 
Constitution that the Federal Government should see to it that theix 
State governments should not only be republican in form, but also 
.should see to it that the rulers Avere elected by the people. They 
stipulated that all the people should be considered and counted in the 
apportionment of I'epresentation, but not so in the election of rulers. 
If we turn to the history of this word " form " in the Constitution we 
find that it was carefully selected. I read from voliuue 2 of the Madison 
Papers. On the 29th of May, 1787, this resolution was introduced by 
Edmund Randolph as part of the plan for the Constitution, page 734 : 

Resolved, That a republican government — 

Using the words the Senator from Wisconsin insists on — 
ought to be guaranteed by the United States to each State. 



10 

That resolution came up agaiu on the 18th of July, wheu this 
change took place, (page 1139 :) 
Resolved, That a republican constitution — 

A very difterent thing; now it is being changed to a matter of 
governmental frame- work — 

Resolved. That a republican constitution ought to be guaranteetl to each State 
by the United States. 

On the same day Mr. Randolph (on page 1140) caught the idea and 
changed his proposition in this wise : 

Resolved, That no State be at liberty to form any other than a republican govern- 
ment. 

This is a guarantee against despotism, against aristocracy, against 
democracy. That was considered awhile, and eventually Mr. Wil- 
son moved that which was finally adopted, no one dissenting : 

Resolved, That a republican form of government shall be guaranteed to each 
State. 

It is the very substance of republican government that we give 
them order, tranquillity, peace, government ; and we see to it that it 
is republican in form, and that we leave it to them to regulate their 
own affairs. 

My friend may ask whether I am content tliat the jieople of Lou- 
isiana shall be the victims of fraud, and that their rulers shall be 
elected by chicanery. No, Mr. President ; I am not content. I am not 
content that republica* government does not exist in Turkey or in 
Russia ; but we have no jiower to give those nations republican gov- 
ernments. We have more power, it is true, over the States than we 
have over those kingdoms, but we have no more power over the States 
than is granted to us in the Constitution, which is to give them gov- 
ernment, and that republican in form. We regret to see men waste 
their estates and destroy their health in dissipation ; but the value of 
indi vidualf reedom prevents such legislative restraints as might prevent 
the evils. Better have individual freedom with the evils than destroy 
H by chafing restraints. So better let the State election be free with 
^he evils tlian impose restraints and supervisions that impair' the free- 
dom of the State. 

Mr. CARPENTER. I want not to answer the Senator, but simply 
to ask him a question, as he did me the other day, so that I may dis- 
tinctly understand him. Does he maintain that in case the three 
branches of government in Louisiana to-daj', that is the men holding 
*hose three branches of government, shall collude together, the court 
o decide all questions in fav^or of the other two, the other depart- 
ments to administer everything in their common interest, to keep 
themselves in power under the present existing repuldican constitu- 
tion of that State during their natural lives, and they should do so 



11 

for fifteen years, would Congress have any power to interfere, the 
form — that is the constitution — being conceded to be republican ? 

Mr. FRELINGHUYSEN. That is not a case before us. 

Mr. CARPENTER. It is two years before us. 

Mr. FRELINGHUYSEN. I think I will show the case supposed is 
not before us at any time. It is difficult to solve questions put in 
this manner out of the order of debate; but my answer is : That if 
after repeated trials in a State, where we have performed our duty 
of giving them order and government, and of seeing to it that it is re- 
publican in form, it should turn out that the people were so depraved, 
ignorant, and degraded, so unfit for the blessings of republican gov- 
ernment, that they abused all their privileges, I suppose it would then 
be incumbent upon us to fulfill that guarantee of the Constitution 
pro tanto, to fulfill it just as far as we could, and to give them gov- 
ernment, eveu if it was under a militarj^ commission. But, sir, we 
will never be called upon to resort to that extreme measure, unless 
the extreme case which my friend has supposed, of the executive, 
legislative, judicial branches of government, and the people them- 
selves, all combining in one dire conspiracy to destroy themselves. 

Mr. CARPENTER. Let me correct my friend as to the elfect of my 
question. My question meant this : Where the judges of the supreme 
court, the members of the Legislature and the executive depart- 
ment, the governor and the other officers, should combine among them- 
selves to hold the people imder their government, and the people 
should be of course resisting that, and the government should apjtly 
to the President to sustaiii it, and the President should interfere, and 
then the question should be presented to us whether, after that thing 
had continued for ten years, and they had avowed their jiurpose of 
continuing for life, we should have any power whatever to interfere ? 
The particular case is only put to test the Senator's argument of the 
distinction between our guaranteeing a republican government and 
what he calls a republican form of government. 

Mr. FRELINGHUYSEN. I think I have answered that question. 
I say that we are bound to carry out the guarantee of the Constitu- 
tion. If the peojjle are so entirely unfit for a republican government, 
we must still give them government, even if it is a military commis- 
sion. But no such state of things will exist. You can suppose a con- 
dition of things which will prove that any government is inefficient 
and unfit for the imrposes for which it is iuaugTxrated. 

Mr. President, if the Federal Government can, in the exercises of it 
arbitrary discretion — a discretion from which there is no appeal, and 
to which there is no review, not even by the people, for we are not 
responsible to the people of Louisiana for the votes given here — if the 
Federal Government can, in the exercise of this arbitraiy power, set 
aside the election of governors and Legislatures of the States, then 



12 

there is an end of the independent government of the States. I sub- 
mit that the procedure here contemplated is without precedent in the 
General Government, and without analogy in any of the State gov- 
ernments. 

As a matter of necessity, deliberative assemblies must be the judges 
of the qualifications of their own members. We judge of the qualifi- 
cations of Senators, and the House of those of Representatives. But 
further than this necessity extends was it ever heard of that an elec- 
tion of a State officer, a governor, a State treasurer, a comi^troller, 
was set aside by a political body ? An election is never set aside even 
by the judiciary. It is submitted to a dispassionate and impartial tri- 
bunal of justice, not to set aside an election, but to determine whether 
the claimant was ever elected. 

Order a new election in Louisiana, and you have established a pre- 
cedent that must impair elective government. Excited parties enter 
upon a strongly contested election ; the one party is in harmony with 
the dominant party in Congress, (perhaps a Senator is to be elected by 
the Legislature ;) that party seeks by violence and fi'aud to obtain suc- 
cess, and when it fails comes to Congress and makes that very fraud 
and violence the pretense for covering their defeat and for having 
the election set aside, and for having a second trial with the adverse 
party who were successful damaged and disgraced by having their 
victory set aside. No, sir; better far let the States sufter for their 
own misdeeds, even the innocent with the guilty ; their suflering 
will lead them to cure the evil. Admonished by the evil results of a 
vicious election, in the calm periods that intervene between elections 
all parties will unite in devising and adopting safeguards to secur* 
honest elections. Eegistry laws, poll-lists, proper places for the i>olls, 
police regulations, and severely penal statutes will be adopted as the 
means of preventing the repetition of the evil. We had better ad- 
here to the Constitution and do what it says, which is that we shall 
guarantee to the several States government ; which we did with 
Louisiana when we sent our troops there preserving order and tranquil- 
lity ; and that we shall guarantee to them a reiiublican form of gov- 
ernment ; which we did when we approved the constitution of Louis- 
iana under which form that government is now carried on. 

If there are frauds in elections or usurpations in office, let the rem- 
edy be found in the coiu-ts of the States or by means of impeachment, 
or by the frequently recurring popular elections. But let us adojit 
the theory that we are under the guarantee clause of the Constitu- 
tion to interfere with States further than to secure to them oi'der and 
tranquillity and a republican form of government, and that we are 
to see to it that the iiroper persons are in power, still I insist that 
Congress is not to order a new election in Louisiana. If Congress is 
to interfere, and there is one whom we know has been duly elected, and 



13 

Avho uuder the constitution of Louisiana is entitled to the office of 
governor, Congi'ess surely is not to interfere by ordering a new election, 
but by placing the one entitled to the office by election and by the 
Louisiana constitution in i^ower. 

This election contest between Kellogg and McEnery was on Novem- 
ber 4, 1872. On that day Warmoth was unquestionably the duly 
elected governor of Louisiana. We are called upon to order an elec- 
tion because no one has since been declared duly elected. But that 
is just the case which the constitution of Louisiana, as approved by 
us, provides for when in the fifteenth article, on the twenty-second 
page of this case, it says that the — 

Governor shall continue in office until the Monday next succeeding the day his 
successor shall be declared duly elected. 

If any one ha.s in the sense of the Louisiana constitution been duly 
declared elected since the 4th of November, 1872, there is no pretense 
for our ordering a new election. If no one has been so duly declared 
elected, then Wai-moth is governor until the Monday after such decla- 
ration, and our business isto reinstate Warmoth and not to order a new 
election. Can it be insisted that when the constitution provides 
that one elected by the people shall continue in office until a successor 
is elected we may interfere and deprive him of his office ? If we inter- 
fere, it must be to place him in power. 

Mr. CARPENTER. Will my friend allow me at that point a ques- 
tion ? Taking that view of the case, suppose Governor Warmoth had 
continued to break up every election from 1872 on, and had been 
there four or five years as governor under that provision, would not 
Congress then have a right to interfere and order an election for the 
purpose of establishing a republican government in that State ? 

Mr. FRELINGHUYSEN. I do not see that what Warmoth might 
have done or might not have done alters the constitution of Louisiana. 
By that we are to be regulated and not by the vagaries of Mr. AYar- 
moth. That constitution declares that Warmoth shall be governor 
until the Monday next after his successor is duly declared elected. 
Do not understand me to be in favor of reinstating Warmoth. I am 
not. I use the argument to show that we had better live up to the 
Constitution of the United States, guarantee to each State order and 
a reijublican form of government, and let the States determine for 
themselves whether they will have a Warmoth or a McEnery or a 
Kellogg as governor. 

But again, Mr. President, if Congress should not reinstate Warmoth, 
still it should not order a new election ; for the author of the bill we 
are considering tells us that McEnery had a majority of 9,606 votes 
over Kellogg. The returns themselves have been brought by subpoena 
from Louisiana and were before the committee ; and the Senator 
from Wisconsin says that — 

Eay McMillen and Pinchback -were before the committee conducting their re- 



14 

*pective siiles of the case, and they all agreed that those were the retarns, aud 
agreed that those returns showed the result that had been arrived at by the Da 
Periet board that McEnery had 9,606 majority. There was no contest about it. 

Some qupstion in debate was made about there being forgeries ia 
these returns, and the Senator from Wisconsin adds a note to his very 
able speech sliowing that that does not change the result. I may 
show what those returns are presently. They are paper ; if true, 
valuable; if false, worthless; but I am looking at the case from my 
friend's stand-point. If we are to interfere it should be to install Mc- 
Enery, not to destroy his election, for it is certainly as essential to a 
republican government that one elected to office should fill the office 
as that one not elected should not fill it. But the Senator from Wis- 
consin does not favor installing McEnery for this reason : He says 
"although of the ballots actually cast McEnery had a majority, yet 
in consequence of the frauds committed previous to the election that 
result utterly reverses -what was the wish and intention of that peo- 
ple." That is no reason why McEnery should not be installed. If he 
had 9,606 majority of the votes cast lie was prima facie governor, 
entitled to his seat, subject to being subsequently removed by judicial 
proceedings. 

Mr. CARPENTER. Notwithstanding he obtained them by fraud ? 

Mr. FRELINGHUYSEN. Notwithstanding he obtained them by 
fraud. 

Mr. CARPENTER. I cannot see now where would be the repub- 
lican government. 

Mr. FRELINGHUYSEN. In the State of Wisconsin Barstow was 
elected governor. (I refer to the case of Bashford vs. Barstow, fourth 
Wisconsin Reports, page 398.) He was not the true governor, he 
was not fairly elected, but he was inaugurated, sent his message to the 
Legislature, and acted as governor I think some sixty days, when an 
information was filed in the court of Wisconsin averring that Bar- 
stow was not elected but that Bashford was, and the result was that 
Barstow was ousted and Bashford inaugurated; and although, as I 
have understood, the incumbent had stacked the State-house with 
arms, the noiseless, silent power of the law ousted him and placed 
the time governor in power. So it would be no novelty that McEnery 
with his 9,606 majority should be placed in office and afterward 
removed therefrom when the fraud should be proven. Do not let me 
be understood as favoring the idea that McEnery should be made 
governor, for I do not. I insist that it would be more logical than to 
order a new election. I make the suggestion to show that we better 
stand by the Constitution of the country, and secure to every State 
order and a government republican in form. 

But, Mr. President, again, it is not only more logical to install Wai- 
raoth or McEnery than to order a new election, but it is more logical 



15 

to leave Kellogg- in power than to order a uew election. Kellogg 
since 1872 lias in fact been governor of Louisiana, and is now. Laws 
have been enacted Avith his approval, contracts have been made, 
rights have vested, the people of Louisiana have order, and govern- 
ment republican in form. That is not all. He is governor in accord- 
ance with the will of the people of Louisiana if the conclusions of 
the Senator from Wisconsin are correct, and he has given this subject 
much attention. In his recent speech he says : 

So I believe, from this testimony and from the whole history of the case, that 
although of the ballot-s actually cast McEnery had a majority, yot in consequence 
of the fiands committed previous to the election, that result utterly revei-ses what 
was the wish and intention of that iM?ople. 

* * * *■ ^- * * 

My belief is, that if any judicial court to-day had jurisdiction of the qiiestiou 
in Louisiana, the result of that election, as held, that is to say the result of the 
ballots actually cast, would be shown to be that McEnery was elected : but I am 
equally well persuaded that the result misrepresents the will and the intention of 
the people of that State on that election day, and that it was in consequence of 
these frauds and obstacles in the way of registration, and the fraudulent location 
of voting places, that Warmoth was able to carry that State by from six to nine 
thousand majority in favor of McEnery. 

And in his speech of the 4th of March : 

I do not think that McEnery was in fact elected, althougb. tlie retuins show that 
he was. 

Mr. President, shall Congress in its interference disregard the 
claims of Warmoth under the constitution of Louisiana, disregard 
the claims of McEnery, who had nine or ten thousand majority, and 
turn out of office one Avho is now quietly discharging the duties there 
and has been since 1872, when we are told by the very mover of this 
measure that he is governor in accordance with the wish and inten- 
tion of that people ? I cannot come to that conclusion. 

The Senator from Wisconsin, in speaking of the election in New 
York in 1868, says : 

Griswold was elected, but Hofl'man was canvassed in as govoinor of that State. 

And he s.iys that we should not interfere in that case, "not because 
Congress did not possess the power, but because such a case would 
not justify the exercise of it. Indeed each case must be judged of by 
its own circumstances and surroundings ; and while Congress ought 
not to exercise this i)ower on slight occasions, or to correct mere irregu- 
larity not productive of important consequences, yet in a case like 
this it would seem that if Congress possessed the power it ought to 
be exercised.". 

And in this case one of the circumstances to be considered is that 
Kellogg is and since 1872 has been exercising the duties of his office; that 
he is in office in accordance Avith the wish and intention of the people, to 
use the language of the Senator. It is strange that my friend should con- 
clude that the Federal Government should not interfere in a case like 



16 

that of Hoftman when, accordmg to his hypothesis, " Griswold was 
elected aud Hoffman canvassed into office," and interfere in Kellogg's 
case. We ought not to interfere when one is in office against the will 
of the people, but we should interfere where the incumbent, he assures 
us, is in office in accordance with the wish and intention of the people. 
Is not the case of Hottman much stronger than that of Kellogg ; Hoft- 
man misrepresenting aud Kellogg representing the will of the people ? 
If we were to adopt my fi-iend's new theory in either case, we should 
have commenced in the case of NewYorkandnotinthatof Louisiana. 

Mr. CAEPEXTEE. Will my friend allow me to interrupt him at 
that point ? 

Mr. FEELIXGHUYSEN. Certainly. 

Mr. CAEPENTEE. The vast difference between the two cases 
cannot fail to strike the Senator. In New York the governor alone 
was questioned, the Legislature was not questioned. The governor 
was not the law-making power. In Louisiana the whole law-making 
power of the State was in the same condition, aud that bogus gov- 
ernment may pass laws, may levy taxes, may repudiate the State 
debt ; aud all those things may be done by men not elected. In New 
York they could not do it. That is the diftereuce in the magnitude 
of the two cases. I do not say there is any difference in the power, 
but as to the expediency of exercising it in one case, the evils to be 
feared from it are totally difl'erent from what they are in the other. 

]Mr. FEELINGHUYSEN. My friend cannot have failed to observe 
that I have said nothing about the Legislature of Louisiana. For 
all that I have said, he does not know but that I am in favor of his 
bill, so far as the Legislature is concerned. I have only treated of 
the governor's election, and his remarks referring to the Legislature 
of Louisiana are entii-ely foreign to the subject we are discussing. 

Mr. CAEPENTEE. If that be so, there can be no difference in the 
case where one man holds a seat in a Legislature without an election, 
and a case where the whole Legislature hold without election. 

Mr. FEELINGHUYSEN. If there is no difference between a gov- 
ernor and one member of the LegislatuVe, the remark is pertinent ; but 
inasmuch as the governor is but one branch of government, it is not 
iiertinent. 
' Mr. CAEPENTEE. He is not the whole law-making power. 

Mr. FEELINGHUYSEN. No ; he is not. 

Mr. MOETON. I suggest to the Senator, if he will permit me, that 
if Kellogg does represent the majority of the people of Louisiana, as 
seems to be conceded, it is equally certain that the Legislature repre- 
sents the majority of the people of Louisiana. 

Mr. FEELINGHUYSEN. And the singularity further about my 
friend's plan is that he would tiirn Kellogg out, although he repre- 
sents the wish aud intention of the people, because he has not a ma- 



17 

jority of the votes, \n\t -woulil uot turn McEuery in, who has 10,000 
majority ; so that it seems this 10,000 majority is goocl as against Kel- 
logg, but worthless in favor of McEnery. 

But, Mr. President, passing bj* the question as to theycoustitutioual 
power of Congress to do more than to preserve order and to secure a 
repixblican form of government, passing by the question of Warmoth, 
McEnery, and Kellogg, let us see whether a case is made in which 
we should order a new election. 

The first tiling to be established is that no one was elected gov- 
ernor, for if any one was, our duty, if we interfere in any way, clearly 
is to install the person so elected. On the 4th of November, 1872, an 
election took place. It had all the forms of an election, registration, 
polls, poll-lists, ballots, returns, registers, supervisors, &c. There were 
bnt two candidates, McEnery and Kellogg. One of those two men in 
fact had a majority of the legal votes cast unless there was a tie, and 
then we have nothing to do with the case, as the constitution of Lou- 
isiana provides that in that event the Legislature elects. One of the 
two must have had a majority of the legal votes ; so the case cannot 
exist for a new election based on the fact that no one was elected. If 
we are to interfere it miist be to find out who was elected governor 
and to place him in office. 

To ascertain who by a majority of legal votes cast is entitled to an 
office, I had supposed was a matter over which the State courts had 
jurisdiction. If for any reasons the State courts have not jurisdic- 
tion, or if so corrupt that they cannot be trusted, then if we are to 
interfere we mtist address ourselves to the question, Who was elected? 
It cannot be advocated that, where it is a mathematical certainty 
that one of two candidates was elected. Congress shall order a new 
election, and thus set a premium on fraud. But we must find out 
who was elected. 

The question as to who was elected governor does not seem to have 
attracted the attention of the Committee on Privileges and Elections. 
There were two things referred to that committee : first, whether 
there was any government in Louisiana, and second, whether the 
Legislattire which elected McMillen, or that which elected Ray, was the 
true Legislature ; and the attention of the committee was directed to 
finding out which was the true board of canvassers, so as to deter- 
mine which was the true Legislature, and thus to decide whether 
McMillen or Ray was prima facie entitled to the seat in the Senate 
which expired on the 4th of March last, and there is but little evi- 
dence as to who was elected governor. I am sorry there is not more ; 
but the burden of proof is with those who seek the removal of one 
who has for two years acted as and claimed to be governor. 

I submit that the moral evidence that ^McEnery had not a majority 
of the legal votes cast, and that consequently Kellogg had, is to my 

2f 



IS 

mind irresistible. Warmoth bad tbe purpose, tbe intent, to cany 
tbat election by fraud. This is apparent, and is conceded. It is noto- 
rious that he, elected a republican, was to give the State to the de- 
mocracy, and as a return wan to grace the United States Senate. His 
legislature I understand, attempted to elect him, but this project was 
abandoned because it was thought it would interfere with the rec- 
ognition of the State government by the General Government. He 
appointed a man named Blauchard to be register. That man has 
made an af3fldavit. If the affidavit be true his character is such that 
no one can approve ; if it be untrue, comment is unnecessary. Blau- 
chard appointed the supervisors in each parish or county, and the su- 
pervisor in each parish appointed three commissioners. To these were 
added three freeholders, who, with the commissioners, assisted the 
supervisors of the parish in counting the votes of the precincts. And 
"we see at a glance that Warmoth could cheat Kellogg, but that Kel- 
logg could not cheat Warmoth or McEuery. One could cheat. The 
organization of the election throughout the whole State originated 
"with and was controlled by Warmoth. It is not denied that Warmoth 
meant fraud, and that he had the power to effect it. There was one 
circumstance which afforded great facility in carrying out this fraud. 
Almost every republican that came to the polls to be registered had 
a mark on him which said " I belong to the republican party ;" he 
was a colored man. There were exceptions. There were some white 
republicans, but they were not so numerous that they were not known, 
so that it was an easy thing to make it difficult to get registration, or 
to secure the requisite identification between the voter and his regis- 
tration papers. 

It appears, then, that the McEnery party had the purpose to cheat, 
and had the organized machinery to effect their end. It looks as if, 
after all, the republican majority was too great for them. Warmoth 
knew that it w'as of the first importance that he should satisfy the 
public that McEnery had a majority, and how easily he could have 
done so. Instead of maneuvering to get a facile board of canvassers, 
instead of resorting to a legislative bill, which he as governor had 
carried for sis mouths in his pocket and signing it so as to create a 
member of the canvassing board that suited him, all he need to have 
done was to call in twenty honest men in the State of Louisiana, 
republicans and democrats, take them to the State-house and there 
say, " Here are the returns ; add them up in the presence of these inter- 
ested parties." It was only a matter of addition. They could have 
publicly added them up, showed the result, and if any one standing 
by said " Those returns are false," all he need have done was to send 
to the supervisor of the parish whom he had appointed, and request 
him to bring the ballot-box and say, "There are the ballots; the re- 
turns are not false;" and if any one charged that the ballot-box had 



19 

been staffed or that there had been votes abstracted, all he need have 
done was to send for the poll-lists and say, "There are the poll-lists; 
they correspond with the ballots;" and if any one charged that the 
poll-lists were false in a given precinct of such a parish, all he need 
have done was to send a justice of the i)eace to that parish ; every man 
who had there voted had indorsed on his registration papers the fact 
that he had voted, and if a living man he conld swear how he had voted. 

Now, Mr. President, when one bent on fraud has it in his power to 
prove to a demonstration that his candidate is elected and shirks the 
investigation, it is moral evidence, irresistible, that the investigation 
woitM have proven that his candidate was defeated. 

Mr. CARPENTER. Will my friend allow me a word at that point ? 

Mr. FRELINGHUYSEN. Yes, sir. 

Mr. CARPENTER. The Senator does not claim, of course, that 
there is any law authorizing any such investigation, or that anybody 
would have been indictable for perjury who should have come before 
that town meeting which he imagines, and sworn falsely ? 

Mr. FRELINGHUYSEN. That is the best answer which can be 
made. But it is a matter perfectly immaterial whether the twenty 
honest men, ten democrats and ten republicans, whom he might have 
selected, were officials or not ; the effect of their determination would 
have been the same on the public. There is in the case nothing that 
requires any oath ; it is a matter of adding up the returns, and 
a matter of ocular demonstration whether the ballots correspond 
with the returns, and whether the poll-lists conform with the ballots 
in the box ; and the only situation in which an affidavit could be 
required is that of a charge being made that in some precinct the 
poll-list was false, and yon would seek the voter with his registration 
paper with him, to ask him how he voted. Some one could have 
been found under their laws to take such affidavit. 

Mr. President, did not Warinoth know that investigation would 
prove his candidate not elected ? At all events, is there affirmative 
proof that McEnery was elected on which we can remove Kellogg? 
But instead of doing all this, !Mr. Warmoth comes to Congress, not to 
ask that his candidate may be installed in office ; but he comes to ask 
that he may not be installed in office. That would lead to investiga- 
tion. He asks that we will order a new election. And the wonder 
is that in the Senate, among those who thought it unconstitutional 
to set aside the State Government when in the hands of those who 
had sworn hostility to the United States Government, among those 
who thought it unconstitutional to set aside those mockeries of gov- 
ernment that AndrewJohnson had erected, now hold it to be consti- 
tutional at the instance of Mr. Warmoth to go into Louisiana and to 
regulate the domestic elections of that State ! 

Mr. President, views similar in some respects to those which I have 



20 

expressed are set forth in the report of my friend from Wisconsin; 
for he agrees with me as to the vicious character of this election: 

A careful oonsideratiou of the testimony convinces ns that, had tlie election of 
November last been fairly conducted and returned, Kellogg and his associates, and 
a Legislature composed of the same political party, would have been elected. The 
colored population ofjthat State outnumbers the white, and in the last election the 
colored voters were almost unanimous in their support of the republican ticket. 
Governor "Warmoth, who was elected by the republicans of the State in 1868, had 
passed into opposition, and held in hisjhands the entire machinery of the election. 
He appointed the supervisors of registration, and,they appointed the commissioners 
of election. The testimony shows a systematic purpose on the part of those con- 
ducting the election'jto throw every possible [difficulty in the way of the colored 
voters in the matter of registration. The jjoUing^places are not fixed by law, and 
at the last election they were purposely established by those conducting the elec- 
tion at places inconvenient of access in those parishes which were known to be 
largely republican ; "so that, in some instances, voters had to travel over twenty 
miles to reach the polls. The election was generally conducted in quiet, and was 
perhaps unusually free from disturbance or j riot. Governor Warmoth, who was 
the master-spirit in the whole proceeding, seems'to have relied upon craft rather 
than violence to carry the State for' McEnery. In the canvass of votes, which 
determined the McEnery government to^be elected, the votes of several republican 
parishes were rejected. 

Mr. President, Iffurther submit that, as might he expected from the 
circumstances referred to, we have nothing amount-ing to evidence 
that McEnery had any majority, and for tliese five reasons-: First, the 
question has at best been only incidentally examined by the commit- 
tee ; second 

Mr. CARPEXTER. The Senator overlooks the fact that we had 
two inquiries before the committee : one, whether there was a State 
government in Louisiana. It is therefore not incidentally before us, 
but directly. 

Mr. FRELINGHLTYSEN. I will come to that. Sly second reason 
for saying that we have nothing amounting to evidence of McEnery's 
election is that from six out of fifty-eight parishes we have no re- 
turns ; third, from several of the parishes the returns are forgeries ; 
fourth, from one at least it is in proof by an eye-witness that the 
returns were manufactured and sworn to in l>lauk before they were 
made. 

Mr. CARPENTER. What case is that? 

Mr. FRELINGHUYSEN. I will give it to you presently. Fifth, 
the preponderance of evidence is that Kellogg and not McEnery had 
a majority of the votes cast. Now I Avill say a word or two on each 
of these points. 

That the committee did not give their attention to the question 
whether Kellogg or McEnery had the majority, no matter what the 
resolution says, is manifest from an examination of the case. Their 
attention was given to the question which was the true canvassing 
board so as to determine which was the true Legislature, in order that 



21 

they might deterraine whether Ray or McMiUen was prima faci 
entitled to be Senator; and if yon want proof that this phase of the 
subject has not been examined, yon have only to look to the report. 
On the last page of the book is this testimony ; one witness, Mr. Ray, 
says : 

I desire to call the attention of the committee to a statement. At a suggesstion made 
l)y one member of the committee yesterday, I examined and found, and if the com- 
mittee will act as experts thoy will find, that the commissioners of elections in sev- 
eral cases in the parishes have their names forged to the affidavits. 

Mr. CARPENTER. In the parishes named, naming four parishes. 
Mr. FRELINGHUYSEN. I do not think that is the meaning; but 

I will read it just as it is : 

If the committee will act as experts they will find, that the commissioners of elec- 
tions in several cases in the jjaiishes have their names forged to the affidavits. For 
instance, there is one from Madison Parish, [exhibiting the papers,] and so in the 
parish of Grant also, and in the parish of Point Coup6e and the parish of East 
Baton Eonge, which, if the committee will examine as experts, they will find it very 
evident in some cases that they were forged. 

The Chairman. "VTe will now consider the evidence in the Louisiana investigation 
closed, as I am advised by both sides that they have laid all the testimony before 
the committee that they desire to present. 

Mr. CARPENTER. The returns being before the committee. 

Mr. FRELINGHUYSEN. Mr. President, we are called upon to de- 
termine that Kellogg is not governor, when it was in proof before the 
committee that in several cases the retiu'ns were forged, the witness in- 
stancing four cases, and not a question was asked or any testimony 
taken in reference to the matter. Why, you might as well throw up 
figures on cards to see how they will land in order to solve a math- 
ematical demonstration as to establish a majority by such testimony. 

Mr. CARPENTER. Will my friend allow me a word? These re- 
turns were before the committee. Mr. Ray, the witness called there, 
did not pretend to have any knowledge about it except what arose 
from looking at the papers. 

Mr. FRELINGHUYSEN. That is all., 

Mr. CARPENTER. He and Mr. McMillen, both being Senators as 
they claimed, and therefore perfectly competent to settle this question 
for themselves, attached no importance to that from the fact that it 
did not change the result if it was so ; and the returns were left with 
the committee after that time. 

Mr. FRELINGHUYSEN. I will pay attention to those returns be- 
fore I close, and in a few minutes. It is clear that the committee did 
not attemiit to find out what returns were forged and what were not, 
for on the presentation of this controlling fact the whole testimony 
•was closed and the report is based on the testimony as it then stood. 

Again, from six out of fifty-eight parishes we have no returns — 
Iberia, Iberville, Saint James, Saint Martin, Saint Tammany, Terre- 



22 

bonue — as appears by the certificate of the Forinau board found on- 
page 81 of the report. It is said that three of these six parishes were- 
rejected because of violence. Forman says so in his testiuiony on the 
seventy-sixth page. They have given no evidence of the violenco 
excepting in one case, and that is spread out from the six hundred 
and fifth to the six hundred and forty-first page — thirty-five pages of 
evidence relating the alleged violence in the parish of Iberville. This 
was a republican parish, having a strong preponderance of colored 
votes. There were from seven to eight hundred white votes and 
three thousand colored votes registered. The white vote was made 
np, as we know, of the democrats, and in that parish of democratic 
planters. To their credit be it said that there seems to have been 
no man in the parish who suited Mr. Warmoth as supervisor, and a 
Mr. Tharp was brought from New Orleans and was made supervisor. 
The commissioners took the ballot-boxes with the poll-lists to Plaque- 
mines. The colored men were orderly, but when voting was over 
they armed and followed the ballot-boxes to Plaquemines. They 
claimed the right to go into the State-house. The sheritf prohibited 
them. They had a right to go in. We would have gone in. They,, 
intent and earnest, watched that ballot-box. When one party would 
grow weary others would relieve them, and they stood at the win- 
dows watching the boxes. 

In all the testimony of thirty-five pages there is no evidence of one- 
act of violence; and that is one of the three parishes the returns of 
which were rejected because of violence. What the violence was in 
the other two parishes they have not had the grace to give us one word 
of testimony to inform us. There was no violence. There was no 
reason that the ballots should not have been counted and the returns 
made up, excepting that it was a strong republican parish. I will 
show presently the effect of the exclusion of these parishes. 

The returns from several of the parishes are forged, but they all 
go in to make up McEnery's majority, as we shall see presently. The 
Senator from Wisconsin very fairly, in a calculation with which I, 
having gone over the figures, entirely agree, makes a deduction for 
those parishes. From one of the parishes the returns were manufac- 
tured; and there my friend asks me for the evidence, and I will 
trouble the Clerk to read from pages 909 and 910 of the testimony — 
that which I have marked. 

The Chief Clerk read as follows : 
State of Louisiana, Parish of Orleans, City of Xew Orleans- : 

Personally came and appeared before me, Kobert H. Shannon, United States com- 
missioner in and for the district of Louisiana, John P. Montamat, of the city and 
State aforesaid, who, being duly sworn, doth depose and say that during the month 
of November, 1872, and for four years before, he was a justice of the peace for this 
parish of Orleans ; that in the month aforesaid, after the election held in this parishi 
for governor and other State and parochial officers, "what date I cannot recollect, 



23 

(but it was while they were counting the votes at the State-house, at the Mechanics ' 
Institute, situated on Dryades street," one Jack Wharton, al.to of this city and 
parish aforsaid, came to my office, situated No. 33 Exchange alley, near Custom- 
liouse street, in this city and parish aforesaid, and requested that I should go with 
Mm in a certain place in this city of New Orleans, in order to administer the oath 
to one of the supervisors of election iu and for the parish of Madison. At said re 
•quest I went with Jack Wharton, who took me in a house situated on Gravier 
street, somewhere near Barroune street ; the entry-doors were closed, and at the 
signal given by Jack Wharton, (three consecutive and hard raps,) the doors were 
'Opened. In the said room I saw one Cahoon, whose first name I do not know, but 
■whom I had seen before in this city ; he, the said Cahoon, then and there informed 
me that he was the supervisor of election for the parish of Madison, appointed by 
Henry C. Warmolh, then governor of Louisiana, and that he wished mo to swear 
Tiim^as to the returns of the late election. I saw there several persons whom I did 
aot know; they were making up tally-lists of the returns of the election for the 
parish of Madison. The lists were signed in blank by the commissioners of elec- 
tion. I inquired from Cahoon, the supervisor, how it was that he had not prepared 
the lists and returns in the parish where he came from. He told me that he could 
not count the votes there; it was a republican parish, and that he had to run away 
because he wanted to count the votes, and admit no one except a few, and he would 
have it his own way, and would here iu New Orleans return such persons as he 
•thought proper. I swore him to several tally-lists and returns. I believe, to the 
best of my knowledge, that the greater part of the tally-lists were yet iu blank 
when I swore him. 

JOHN P. MONT AM AT. 

Subscribed and sworn to before me this 3d day of February, 1873. 

[6EAL.1 K. H. SHANNON, 

United States Commissioner, District of Louisiana. 

Mr. FRELINGHUYSEN. There was a secret place entered by ar- 
ranged, signals where officers wore engaged in making up returns, a 
number of which were sworn to in blank and filled up afterward. 
-Now read, if you please, the rest of that marked. 

The Chief Clerk read as follows : 

Question. Taking your estimate of the votes in these parishes where these frauds 
;ar6 charged, if the vote had been fairly counted, what would have been the resale 
as compared with the vote in the parishes where no frauds are charged ? 

Answer. I do not understand your question. 
By Mr. Hill : 

Q. What would have been the effect on the general election ? 
By Mr. Logan : 

Q. What would have been the result of the election ? 

A. O, if there had been no frauds in these parishes, and they had returned the 
^ote as they did in some of the parishes, fairly, they would have given the repub- 
lican ticket a very large majority, according to their own returns. 

Q. In the State? 

A. Yes, sir; in the State. 

Q. Do yon speak of the votes actually cast, or the voters in the district ? 

A. I refer to the voters ; but the votes actually cast, in my judgment, if iiroperly 
returned, would have given the republican party a majority in the State. I have 
mo doubt of that. 



24 

Q. That is, the votes as tliej- -were actually cast? 
A. Yes, sir ; as actually put in the boxes. 
Mr. MORTON. I ask what parish that was ? 

Mr. FRELINGHUYSEN. A parish some two hundred miles away., 
Mr. WEST. The parish of Madison. 
Mr. MORTON. How far away f 

Mr. WEST. It is three hundred miles from New Orleans. 
Mr. FRELINGHUYSEN. Mr. President, let us look at the effect of 
the facts I have called attention to upon McEnery's majority. They 
claim for McEnery a majority of 9,606. The four parishes where there- 
were forgeries and the six parishes fi'om which there are no retnrns, 
according to the Lynch hoard, give Kellogg a majority of 7,295. 

Mr. CARPENTER. It is not pretended that all the returns in those 
parishes were forged, hut only one or two of them. 

Mr. FRELINGHUYSEN. It probahly is much worse than those 
four parishes. They are mere illustrations. The returns from those- 
the witness holds np and says, for instance, these are forged. He says- 
there were forgeries in several parishes, and instances these four.. 
Now take the 7,295 majority in six parishes not returned and in 
four in which the retiu'ns were forged from the 9,606, and it leaves: 
McEnery's majoi'ity, as the Senator from Wisconsin agrees, 2,611. Now 
let us see what becomes of that 2,611 majority. Let anybody who 
wants to examine this read the three hundred and sixth page of the 
testimony which was sent here with the President's message. There 
is Caddo Parish. The white registration was 1,549 and McEnery's 
vote 1,837 — nearly 300 more than the white registration. The colored 
registration was 3,139, and Kellogg's vote 1,576, or 1,563 less than the 
colored registration. This shows fraud not before but after the elec- 
tion. It points to a falsification of returns, for frauds in keeping men 
back fi'om the polls probably would not give McEnery 300 more votes 
than there were white votes registered. 

Mr. CARPENTER. How can 'you tell whether a ballot was cast 
by a black man or a white man ? 

Mr. FRELINGHUYSEN. No ; but my friend's report states that 
the colored men were rexiublicans as a general rule, and the white.? 
democrats. Take Rapides Parish. The white registry was 1,011 ; 
McEnery's vote was 1,960, or 949 more than the wliite registration. 
In Natchitoches the white registration was 1,486, and McEnery's vote 
1,230; the colored registration was 1,875, and Kellogg's vote only 55. 
In Bossier Parish the white registration was 578; McEnery's vote 953,. 
or 375 more than the white registration ; the colored registration 1,795, 
and the vote forjpcellogg 555. It is perfectly apparent that the fraud* 
was in the returns as well as in the manner in which the election was. 
conducted. 

But again, take another view of these returns. There are fifty-eight 



25 

parishes in Louisiaua. In twenty-fom- — Ascension, Bienville, Calca- 
sieu, Caldwell, Cameron, Carroll, Claiboi-ne, Concordia, East Felici- 
ana, Franklin, Jackson, Jeft'erson, Lafayette, Livingston, Ouachita, 
Pointe Couple, Red River, Sabine, Saint Bernard, Saint Charles, Saint 
John Baptist, Tangipahoa, Tensas, and Orleans — which are those where 
there is not much difference between the two boards of canvassers in 
the result, in those twenty-four parishes l)y the Forman board there 
is an aggregate of 36,679deniocratic votes and 36,203 republican votes, 
giving a democratic majority of 476. According to the Lynch board 
the republican vote was 35,590 and the democratic vote 33,817, giving 
a republican majority of 1,673. The Forman board gives a demo- 
cratic majority of 476 and the Lynch board a republican majority of 
1,673, no very great difference for such an election ; average it, and 
call it a majority of 1,000 for Kellogg. The vote was close and the 
registration was correspondingly so. The white registration was 
.52,979 and the colored registration was 51,469. The democratic vote 
aud the white registration, the republican vote and the colored regis- 
tration correspond. 

Now look to the remaining thiity-four parishes. By the Forman 
board the deimocratic vote is in the aggregate 27,788 ; the re]iublican 
vote 20,170, giving a democratic majority of 7,618. This is manifestly 
a fraud, and is thus shown. In those thii'ty-foiu- parishes the regis- 
tration of whites was 34,786, and that registration giA'^es a democratic 
vote of 27,788. The registration of the colored people was 42,879, and 
that gives a republican vote of only 20,170. If the same ratio of 
republican votes was given for the 42,000 colored registered voters as 
of democratic votes given by 34,000 white registered votes, which 
was 27,788, the republican vote would be 35,000 instead of 20,170. 

Now let us see what becomes of McEnery's majority. The difference 
between 35,000, the true vote by all the analogies of this case and accord- 
ing to the Lynch board, and the 20,170 that the Foiman returns give for 
these thirty-fom- parishes is 14,830. Take from that McEuery's ma- 
jority of 9,606, and it leaves Kellogg's majority 4,924. Add to the 
4,924 the majority which Kellogg had in the twenty-four parishes, 
and it makes Kellogg's majority 5,924. 

You may turn this subject any way you please, aud you will tind 
that Kellogg was not only the representative of the will and inten- 
tion of the i^eople, as the Senator from Wisconsin says, but that he 
had a majority of the legal votes cast. At all events there is no affirm- 
ative proof on which to displace him. 

Shall we turn Kellogg out of oifice, when all admit that he repre- 
sents the will of the people and when the preponderance of evidence 
is that he had a majority of votes cast, for the sake of giving effect to 
the fraud which was most infamously perpetrated in that Louisiana 
election ? 

3f 



26 

A word more, Mr. President, and I have done. There is another 
view of this case couchisive against a new election. We are consid- 
ering this case as a Legislature and not as a conrt; we are exercising 
political, not judicial powers. A conrt is confined to 4^he record, must 
decide upon the issue, must be controlled by rigid and fixed rules. 
If a case is brought before it it must decide it. A Legislature 
has a Ijroad tliscretion ; it has an arbitrary discretion, except so far 
as it is controlled by the constitution of the country and by good 
conscience. The Senator from Wisconsin, not in reference to this 
case particularly, but in stating the principle of the bill, holds that 
Congress has the right, without any application coming from a State, 
where the State courts have declared an election to be valid, to set 
aside the election and to order a new one. I cannot agree with 
him, and am glad that there is one relief to this x)rodigious power. 
The Senator fi-om Wisconsin states the relief while stating the power. 
He says : 

The question is in its nature political, not judicial ; antl no court. State or national, 
can settle it so as to preclude Congress from inquiring into it and .settling theques: 
tion for itself. 

It is a relief to know that we need not exercise the power, its exer- 
cise being left to our political discretion. What propriety is there in 
ordering a new election in Louisiana ? It would be a sheer volunteer 
act. No one asks oirr interference. The governor is in office ; the 
General Government acquiesces ; laws are enacted ; contracts made, 
and rights vested. All agree that Kellogg represents the wishes of 
the people, and it seems as if the preponderance of evidence is that 
Kellogg had a majority of the votes cast. And here let me say that 
I do not agree with the Senator from Wisconsin that Congress is 
making a precedent even if it does not order a new election. We 
are no more doing so in the exercise of a political discretion on this 
subject than we are whenever we refuse to pass a bill. Our discre- 
tion is nrMtrarij, controlled only by the Constitution and by good 
conscience. 

In reference to the Legislature I have nothing to say. It would 
be very unwise to order an election for members of the Legislature, 
for an election under the laws of the State will take place as soon as 
could be had under a law of Congress. The bill, I think, should not 
pass. 



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